Taiga v R [2023] SBCA 5; SICOA-CAC 33 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Taiga v R
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands ( Lawry, J)
Court File Number(s):	33 of 2022
Parties:	Max Gosia Taiga v Rex
Hearing date(s):	18 April 2023
Place of delivery:
Judge(s):	Goldsbrough, President Hansen JA Wilson JA
Representation:	Alasia B for Appellant Kelesi A for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Correctional Service (Parole) Amendment Regulation 2020 Sub Section 5 (1)
Cases cited:	Ludawane v R [2017] SBCA 23
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-9

JUDGMENT OF THE COURT

1. This is an appeal against sentence brought with leave granted by the President of this Court on 27 October 2022.
2. The appellant Max Gosia Taiga was charged with the murder of Li Meng Chen on 13 April 2021.
3. On the first day of the trial (5 September 2022) there was a view of the scene of the crime. The trial was then adjourned to the next day.
4. When the appellant was re-arraigned on the second day of the trial, he pleaded guilty.
5. The judge heard sentencing submissions from counsel for the Crown and defence counsel on 9 September 2022. Five days later his Lordship imposed the following sentence –
   • (i) life imprisonment;
   • (ii) a minimum term of imprisonment of 25 years to be served before being eligible to apply for parole (‘the non-parole period’);
   • (iii) the term of imprisonment to commence from the date the appellant was taken into custody (‘the allowance for pre-sentence custody’).

Those three elements (the mandatory life term, the non-parole period and the allowance for pre-sentence custody) together make up the sentence ultimately imposed.

6. On the hearing of the appeal counsel for the appellant submitted that the sentencing judge erred in fixing the non-parole period in two respects –
   • (i) in using 27 years as the starting point when he ought to have used 15-16 years; and
   • (ii) in making an insufficient downward allowance for mitigating factors.

The facts

7. The deceased was a 44-year-old Chinese woman who ran the Wai Hai Shop at Point Cruz, Honiara. The appellant was her employee. He had previously taken offence at the way she had spoken to him. Whatever she said, it was common ground that it did not amount to provocation in the legal sense.
8. At the end of one working day, the appellant hid inside the shop awaiting the deceased’s arrival shortly after 8 am the next day. He expected she would be alone, and she was. A minute later he emerged from behind some stacked boxes and buckets, and lunged at her, tackling her to the ground. While she was on the ground, he repeatedly struck her head with an iron rod. He then went and changed his clothes.
9. Meanwhile, about 10 minutes after that attack, the deceased stood up. She called her husband on her mobile phone seeking help. The appellant ran and attacked her again, pinning her to the floor and stabling her on the left side of the neck. Then he tied her legs together attaching the rope to a fixed object.
10. The appellant left the deceased lying bleeding from the stab wound. He went out of the building, as he did so making sure the entry was locked. Then he joined others who were trying to gain entry. Later he gave a statement to police.
11. The next day the appellant returned to his village in Malaita. One month and 19 days later, after negotiations between the police and his family, he surrendered to police.
12. The appellant inflicted a large number of injuries on the deceased –
    1. An abrasion 15mm x 15mm on the right side of her forehead;
    2. A 20mm x 10mm bruise on the right eyebrow;
    100. A 30mm x 10mm abrasion on the right side of the neck;
    4. A 40 mm x 10mm abrasion to the front of the neck;
    5. A 9mm x 1mm abrasion on the left side of the neck towards the front;
    6. A laceration/ incision wound at the back of the head on the right side measuring 56mm x 2mm and 12mm deep;
    7. A laceration 30mm x 5mm and 14mm deep on the left side of her head;
    8. A stab wound 37mm x 12mm and 100mm deep on the left side of the neck below and behind the ear. The stab wound was downwards but diagonally to the front.

The sentencing judge summarised the post mortem report as follows –

• The pathologist reported that there was bruising associated with the injuries to the head. The deceased died from the loss of blood as a result of the stab wound severing the left internal jugular vein. The abrasions on the neck were consistent with manual strangulation. The laceration on the left side of her head was likely to have been caused when you struck her with the iron rod. The laceration to the back of the head could have been caused by either the iron rod or the knife. The abrasions on the forehead and other bruising to the right eyebrow were likely to be caused by the iron rod.

13. The appellant was aged 22 at the time of offending. He was married with two children and employed full-time by the deceased. He had not previously come to the attention of police.

Approach to sentencing in murder cases

14. Murder – that is, causing the death of another person with intent to kill or to cause grievous bodily harm - is always a heinous offence. Solomon Islands law provides that an adult offender who is convicted of murder must always be sentenced to life imprisonment.
15. Objectively, however, the circumstances in which murders are committed and the levels of criminality involved vary quite widely. While a sentencing court has no discretion in fixing the duration of the term of imprisonment it imposes for murder, it has some discretion in fixing the ‘non-parole period’ – that is the minimum time the offender must serve in prison before becoming eligible to apply for parole. Whether he or she is granted parole is a matter to be determined by the Parole Board, not the sentencing court.
16. Sub-regulation 5(1) of the Correctional Services (Parole) Amendment Regulation 2020 provides –
    • (1) Subject to subregulations (3) and (4), a convicted prisoner who is serving a life sentence may only apply to the Board for parole if the prisoner has served:
      • (a) the minimum term of imprisonment set by the Court on sentencing the prisoner; or
      • (b) if no minimum term was set – at least 15 years of his or her effective sentence.

It was not necessary for his Lordship to consider sub-regulations (3) and (4) in fixing the non-parole period in this case.

17. In Ludawane v R [2017] SBCA 23 this Court provided a framework to guide sentencing Courts in setting the minimum term a prisoner convicted of murder must serve before becoming eligible to apply for parole. Drawing on practice in the English criminal courts,^[1] it described three categories of murder cases according to the gravity of the offending. Then it set a nominal but substantial non-parole period for each category, intending that the sentencing court would use that as the starting point in fixing the non-parole period in the case at hand. It envisaged that the sentencing judge would then make an upward allowance for any aggravating features followed by a downward allowance for mitigating factors. In other words, the non-parole period should be fixed as follows:
    • Starting point (according to category of offending) PLUS allowance for aggravating factors MINUS allowance for mitigating factors.
18. The three categories in Ludawane are –
    • (i) those that attract ‘the normal’ starting point of 12 years - for example, those involving the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other.
    • (ii) those that attract a starting point of 15 or 16 years - that is, cases where the offender’s culpability was exceptionally high, or the victim was in a particularly vulnerable position. In Ludawane the Court provided a non-exhaustive list of eleven features of a murder in this category. They included that the victim was vulnerable and the infliction of extensive and/or multiple injuries before death.
    • (iii) the most serious cases - for example, those involving a substantial number of murders, or where there were several of the factors identified as attracting the higher starting point of 15 – 16 years. In such cases a substantial upward adjustment might be appropriate. In exceptionally serious cases, the non-parole period might be as much as 30 years or the Court could say that there was no minimum period which could properly be set in the particular case.
19. Factors which would warrant an upward allowance for aggravated offending include premeditation and being armed with a weapon in advance.

The sentencing judge’s reasoning

20. It is incumbent upon a sentencing judge to expose his or her reasoning in arriving at the sentence ultimately imposed. This Court commends the sentencing judge for the manner in which he did so in this case. His Lordship explained the framework laid down in Ludawane, considered the facts and outcomes in other cases which had been cited to him, and then continued –
    • Because your violence was premeditated, with a vulnerable victim and you had breached the trust placed in you as an employee the minimum sentence for your offending must exceed the 15 to 16 year guideline which is where the second category of offending discussed in Anderson begins. I consider that the sustained nature of the attack using two different weapons, disguising yourself then waiting for your victim to arrive, then preventing others from having access to assist her places the minimum term between the second and their categories. After considering the aggravation factors I take a starting point for the minimum term of imprisonment as 27 years.
    • I reject the submission that the term should be reduced because of the perceived slight at words the deceased had previously used. This is not a case where you even came close to losing the power of self –control. You killed in retaliation. You planned what you would do and waited through the night for the deceased to come to the shop. You had the opportunity to reflect on your plan of action. You chose to proceed. You attacked, restrained and killed your employer. If anything such a reaction is an aggravating factor.

His Lordship then made a downward allowance for mitigating factors – the fact that the appellant had not previously come to the attention of the police and the guilty plea. He assessed each of those factors in all the circumstances. He balanced the absence of any previous brush with the law against the brutality of the conduct in relation to the deceased. He did not accept that the plea was indicative of remorse given the very late stage at which it was entered, but accepted that it was a recognition by the appellant of what he had done and perhaps of the strength of the case he faced. Finally his Lordship said –

• I bear in mind that this is not the first occasion when an employee of a shopkeeper has used violence against an employer. The community has a right to know that those who choose to act violently against others who have entrusted them with employment can expect the Courts to impose significant terms of imprisonment.

Discussion

21. His Lordship considered that the circumstances of this case fell somewhere between the second and third categories identified in Ludawane. He adopted 27 years as the starting point and then made a downward allowance of 2 years for mitigating factors. In doing so, he effectively engaged in a two-step process rather than the three step process set out in Ludawane. Save for exceptional cases, a sentencing judge should explicitly engage in a three-step process to ensure consistency with Ludawane and for the sake of clarity.
22. This case fell with the second category in Ludawane. His Lordship should have adopted 15 – 16 years as the starting point.
23. Then his Lordship should have made an upward allowance for the aggravating features he identified – the sustained nature of the attack, the use of two different weapons, lying in wait for the victim to arrive, and locking the door to prevent others gaining access to assist her.

To reach a provisional non-parole period of 27 years would necessarily have involved an upward allowance for aggravating features of 11-12 years. Such an allowance would have been manifestly excessive. The aggravating features identified by his Lordship warranted an upward allowance of about 5 years – which would have produced a provisional non-parole period of about 20 years.

24. His Lordship did not err in making a downward allowance for mitigating factors of only 2 years. The very late plea was indicative of lack of remorse. On the other hand, it had some utilitarian value in that it would have saved some costs and reduced inconvenience to witnesses and stress on their part. Further the fact that the appellant had not had any previous brush with the law was of little effect in mitigating the brutality of his attack on the deceased and his callousness in leaving her to bleed to death.
25. In short, the sentencing judge erred in imposing a non-parole period of 25 years. That period was manifestly excessive. A non-parole period of 18 years would have been appropriate in all the circumstances.

Disposition

26. The appeal against sentence should be allowed. The sentence should be set aside, and the appellant should be resentenced as follows –

The appellant is sentenced to life imprisonment.
The appellant is to serve a minimum term of 18 years’ imprisonment before he is eligible for parole.
The term of imprisonment commences from the date he was taken into custody.

Goldsbrough P
Hansen JA
Wilson JA

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^[1]The framework established in Ludawane was less complex that its English counterpart in that it was based on fewer categories.